General Terms and Conditions of
(Current as of March 2012)
I. Applicability of “General Terms and Conditions of MAXIMATOR GmbH” and offer
1. Unless the parties specifically agreed otherwise, these “General Terms and Conditions of MAXIMATOR GmbH, Lange Straße 6, 99734 Nordhausen, Germany (current as of March 2012)” (hereinafter “Terms and Conditions”) govern all supplies of machine or machine parts by MAXIMATOR GmbH (hereinafter “MAXIMATOR”).
2. The Customer’s order constitutes a binding offer made by the Customer to MAXIMATOR, by which the Customer is bound for a period of four weeks after MAXIMATOR’s receipt thereof. The agreement is not concluded unless MAXIMATOR has expressly accepted the Customer’s order by issuing a written order confirmation.
3. Any oral commitments made by MAXIMATOR prior to the execution of the agreement are non-binding in a legal sense, and a written agreement supersedes any oral agreement made between the parties that does not specify that it is to continue in full force and effect. Changes and amendments to agreements made, including these Terms and Conditions, must be made in writing – a formal requirement that a transmission by facsimile satisfies but transmissions using means of telecommunications, such as electronic mail, do not.
4. MAXIMATOR specifically notes that information supplied about machines (e.g., weight, dimensions, present utilization value, load, tolerance level and technical data) as well as any representation of such information (e.g., drawings and illustrations) are
approximations unless a precise match is needed for the machine’s fitness for the intended and agreed purpose. Such information shall not constitute guaranteed characteristics but instead serves as a description or characterization. Common deviations and those resulting from legal provisions or technical improvements are permissible, as is the replacement of components by parts of equal value, provided that the fitness for the intended and agreed purpose is not compromised as a result.
5. General terms and conditions of the Customer or third parties do not apply even if MAXIMATOR does not specifically object to them in a given case. Even if MAXIMATOR references a letter containing the general terms and conditions of the Customer or third parties, such reference does not imply MAXIMATOR’s agreement with the applicability of such general terms and conditions.
II. Purchase prices, terms of payment
1. The purchase price is stated “ex works,” with the Customer bearing any and all costs of packaging, shipping and transport as well as duties, taxes and other public dues. MAXIMATOR will not take back shipping and other packaging materials subject to the German Packaging Ordinance. Instead, with the exception of pallets, such materials become the Customer’s property. If the Customer so wishes, the goods may be insured at the Customer’s expense against theft, breakage, shipping, fire and water
damages as well as any other insurable risk.
2. The purchase price is exclusive of sales tax in the applicable amount.
3. Unless specifically agreed otherwise with the Customer, the purchase price for any
machine is due as follows:
– 30% upon the execution of the agreement, payable within ten days;
– 30% after half of the delivery time, payable within ten days.
– 30% ten days prior to the agreed shipment or delivery of the machine to the
Customer, its representative or freight carri er, payable within ten days; and
– the balance upon the shipment or delivery of the machine to the Customer, its
representative or freight carrier, payable within thirty days.
4. All invoiced amounts are payable in full.
III. Delivery period and partial deliveries
1. The contractually agreed delivery period applies. Insofar as goods are to be shipped or transported, delivery periods and dates refer to the time of delivery to the shipper, freight carrier or other third party entrusted with the transport.
2. In the event of force majeure, including but not limited to business disruptions, transport delays, collective action (especially strike and lock-out) and the failure of MAXIMATOR’s suppliers to effect timely and correct deliveries, irrespective of grounds (provision of proper self-supply), as well as all other impediments to performance arising through no fault of MAXIMATOR, MAXIMATOR may postpone delivery for the duration of such impediment plus a reasonable lead time. Insofar as such events significantly impede – or render impossible – MAXIMATOR’s deliveries and performance, and the impediment is not just temporary in nature, MAXIMATOR may withdraw from the agreement. To the extent that, on account of such delays, the Customer cannot reasonably be expected to accept deliveries or performance, it may rescind the agreement by promptly providing MAXIMATOR with written notice to that
3. Partial deliveries are permissible if
– the Customer has use for partial deliveries as part of the agreed purpose of use;
– the supply of all remaining machine components is assured; and
– the Customer does not incur – or MAXIMATOR agrees to bear any – significant added expenditures or costs.
IV. Transfer of risk, acceptance, default
1. The Customer bears any and all risks associated with shipment and transport, which pass to the Customer upon the delivery of the goods (as defined as the beginning of the loading process) to the shipper, freight carrier or other third party entrusted with the transport even in the event of (i) partial deliveries or (ii) MAXIMATOR having assumed other costs, such as the cost of shipping or transportation and set-up, save for cases subject to Item IV No. 2.
2. In the event that the Customer refuses acceptance of ordered goods or if their shipment is delayed for other reasons culpably caused by the Customer, the risk of the machine’s accidental demise or deterioration passes to the Customer upon the
beginning of such default.
3. In the event that the Customer is in default withacceptance or if it violates other duties of cooperation, it must indemnify MAXIMATOR against any damages incurred to such extent, including but not limited to added expenditures. Specifically, the Customer bears the costs of MAXIMATOR’s storage of any machine so affected, which MAXIMATOR may invoice at a flat rate of 0.5% of the machine’s full agreed purchase price, unless the Customer furnishes proof to the effect that MAXIMATOR did not incur any – or less – damages as a result of storing such machine. MAXIMATOR’s other legal rights arising from default in acceptance, if any, are not affected.
4. The Customer must accept delivery of any ordered goods even if the goods have minor defects; the Customer’s rights under Item VII are not affected.
V. Retention of title
1. The retention-of-title clause agreed below serves the purpose of securing MAXIMATOR’s present and future claims against the Customer under the agreement entered into between the parties.
2. The goods MAXIMATOR supplies to the Customer (in this Item V, hereinafter the “Goods Subject to Retention of Title”) remains MAXIMATOR’s property until all secured claims have been paid in full.
3. The Customer treats and processes Goods Subject to Retention of Title on behalf of MAXIMATOR as manufacturer within the meaning of Sec. 950 of the Civil Code (BGB) and to the exclusion of any obligation on MAXIMATOR’s part. Goods treated or processed are deemed Goods Subject to Retention of Title according to Item V No. 1. In the event that the Customer treats, processes, combines or mixes Goods Subject to Retention of Title with other goods, creating new or combined goods, MAXIMATOR becomes a co-owner of these new or combined goods, with its share reflecting the proportion of the effective invoice amount of the Goods Subject to Retention of Title at the time of delivery to the value of such processed or combined goods. Co-ownership shares are deemed Goods Subject to Retention of Title according to Item V No. 1.
4. In the event that Goods Subject to Retention of Title are combined with other goods, and if goods belonging to the Customer must be deemed the principal component within the meaning of Sec. 947 BGB, the parties hereby already agree that (i) MAXIMATOR will become a co-owner thereof, with its share reflecting the proportion of the effective invoice amount of the Goods Subject to Retention of Title to the value of such principal component, and (ii) the Customer will store the good for MAXIMATOR free of charge. Co-ownership shares are deemed Goods Subject to Retention of Title according to Item V No. 1.
5. The Customer must store Goods Subject to Retention of Title for MAXIMATOR. Upon request, MAXIMATOR must be allowed, at any time, to take inventory of and adequately mark such goods where they are stored. The Customer must promptly notify MAXIMATOR of any third-party attachment or other encumbrance affecting MAXIMATOR’s rights, providing such details necessary for MAXIMATOR to take action against such third party using all legal means possible.
6. The Customer may sell Goods Subject to Retention of Title (i) in the regular course of business, (ii) subject to its usual terms as well as to an agreement providing for retention of title and (iii) to the extent determined by MAXIMATOR, provided that the Customer’s claims under the resale transaction pass to MAXIMATOR pursuant to Item V Nos. 7-11.
7. The Customer hereby already assigns to MAXIMATOR its claims under the resale transaction of Goods Subject to Retention of Title, including those under contracts for work and services or agreements for the supply of movable goods to be made or manufactured, along with any and all subsidiary rights, such claims serving as security for MAXIMATOR with respect to Goods Subject to Retention of Title to the same extent. The Customer must not assign claims to third parties without MAXIMATOR’s prior written consent.
8. In the event that the Customer sells Goods Subject to Retention of Title along with other goods not supplied by MAXIMATOR, the assignment of the claim under the resale transaction is valid only in the sum of the effective amount of MAXIMATOR’s invoice for such goods at the time of delivery. In cases of the sale of a machine co- owned by MAXIMATOR pursuant to Item V No. 3 or Item V No. 4, the claims’ assignment is valid in the amount of such co-ownership share.
9. In the event that the assigned claim is included in a current account, the Customer hereby already assigns to MAXIMATOR the amount of the balance corresponding with such claim, including the final balance under the current account.
10. Until further notice, the Customer is entitled to collect receivables under resale transactions pursuant to Item V Nos. 6-9.
11. In the event that the Customer fails to meet its obligations under these Terms and Conditions, – MAXIMATOR may prohibit the resale, treatment and/or processing of Goods Subject to Retention of Title as well as their combination or compounding with other goods;
– MAXIMATOR may withdraw from the agreement with the Customer, in which case
(i) the Customer’s right to possess Goods Subject to Retention of Title lapses,
(ii) MAXIMATOR may demand that such goods be returned,
(iii) MAXIMATOR is entitled to enter the Customer’s premises, take possession of Goods Subject to Retention of Title at the Customer’s expense and, without prejudice to the Customer’s payment and other obligations, put them to the best possible use by either selling them in the open market or auctioning them off, applying the proceeds, as adjusted for related costs, to the Customer’s liabilities and disbursing any surplus to the Customer; and
– the Customer must identify to MAXIMATOR upon request the debtors of the claims assigned to MAXIMATOR to enable MAXIMATOR to disclose the assignment and collect receivables; all proceeds to which MAXIMATOR is entitled under assignments must be disbursed to MAXIMATOR without delay upon receipt once MAXIMATOR’s claims against the Customer are due.
12. If the value of the security to which MAXIMATOR is entitled exceeds the total claims by more than 10%, MAXIMATOR is obligated, upon the Customer’s request, to release securities in the appropriate amount; the selection of securities to be released falls within MAXIMATOR’s discretion.
VII. Warranty for defects
1. The Customer holds claims based on defects only if and to the extent that it met itsduties of examination and defect notification (Secs. 377, 381 of the German Commercial Code (HGB)). In the event that a defect is identified upon examination or at a later point in time, MAXIMATOR must be given written notice thereof immediately, which for purposes hereof means that notice must be dispatched within two weeks. If the Customer fails to properly discharge its duties of examination and/or defect notification, it forfeits any claims related to the defect not notified.
2. Defects shall be remedied by MAXIMATOR, at MAXIMATOR’s option, through free-of-charge removal of defects (repair) or replacement. . If such remedial action fails, the Customer may, at its option, withdraw from the agreement or demand that the purchase price be adequately reduced.
3. Irrespective of circumstances, the Customer holds no claims based on defects if and to the extent that damages resulted from inapt or improper handling, improper installation or commissioning by the Customer or third parties, regular wear and tear, improper or negligent treatment or maintenance, inappropriate operating resources or substitute materials, poor construction work, unsuitable building areas or chemical, electrochemical or electrical interference, provided and to the extent that such circumstances have not been culpably caused by MAXIMATOR.
4. The Customer’s claims for damages or indemnification for expenditures incurred in vain are limited as set forth in Item VIII and otherwise excluded.
5. The warranty period lapses one (1) year from the delivery, or upon acceptance if acceptance was agreed.
1. MAXIMATOR bears unlimited liability for (i) damages resulting from injuries to life, body and health, which were culpably caused by MAXIMATOR, its legal representatives or agents, (ii) damages owing to the lack of properties and conditions warranted by MAXIMATOR and (iii) MAXIMATOR’s malicious acts.
2. MAXIMATOR further bears unlimited liability for damages caused by MAXIMATOR, its legal representatives or agents intentionally or as a result of gross negligence.
3. In cases of culpable violations of cardinal contractual obligations owing to slight negligence on the part of MAXIMATOR, its legal representatives or agents, MAXIMATOR’s liability is limited to the amount of foreseeable typical damages, save for the cases set forth in Item VIII No. 1 or Item VIII No. 4. In abstract terms, cardinal contractual obligations are such obligations as may (i) be needed for the agreement’s proper fulfilment and (ii) reasonably be relied upon by the parties to the agreement.
4. Any liability under the product liability act is not affected.
5. Any other liability on the part of MAXIMATOR is expressly excluded.
6. The period of limitation for claims for damages against MAXIMATOR equals one (1) year, excluding the cases set forth in Item VIII no. 1, Item VIII No. 2 or Item VIII No. 4.
1. Disputes arising from or in connection with the agreement are settled by the courts of Mühlhausen or, at MAXIMATOR’s option, those with jurisdiction over the location of the Customer’s registered offices. The Customer’s legal claims are settled exclusively by the courts of Hamburg. Applicable law on exclusive jurisdiction is not affected.
2. Unless agreed otherwise, the place of performance is the location of MAXIMATOR’s registered offices.
3. Unless agreed otherwise, German law applies to the exclusion of provisions of international private law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as any other, including future, bilateral or international treaties do not apply, even after being ratified.
4. Declarations and notices of legal relevance, which the Customer must issue to MAXIMATOR following the execution of the agreement (e.g., notices to cure default, of defect, rescission or abatement) must be provided in writing.
5. The Customer must not set off counter-claims or withhold payments on account of
such claims unless its counter-claims are undisputed or have been effectively established.
6. The Customer is not entitled to assign to third parties claims against MAXIMATOR under the agreement without MAXIMATOR’s prior written consent.
7. For purposes hereof, transactions with businesses are no different than transactions with legal entities or special funds under public law.